Five-member panels of judges in two recent Family Court cases, In re Darryl C., 6253 and In re Jaquan M., 6432, ruled that the respective 14-year-olds were not acting suspicious enough to warrant a stop-and-frisk, even though the frisks turned up guns on both cases. The rulings are curious examples of the long, arduous process to discern appropriate frisking suspicion based on a broad legal standard adopted 36 years ago in People v. De Bour. Obviously, it’s been a difficult 36 years of applying hindsight judgment to spur-of-the-moment police decisions while establishing precedents to maintain privacy AND safety. De Bour confuses observers and judges alike–both of the above decisions were by 3-2 votes, and while 47 of the 60 stop-and-frisk court cases in the last three years favored the prosecution, 10 came with written dissents by one or two judges.

According to the De Bour ruling, level 1 questioning requires simple identification and reason for being in the current area, while level 2 questioning becomes pointed with the suspicion that the citizen is suspected of a crime. It isn’t until level 3 questioning that a stop and seizure is permitted, given “reasonable suspicion” that a crime has been or is about to be committed, in which a frisk is carried out if the officer “reasonably suspects” that the citizen has a weapon on his/her person that could endanger the officer. Which means, of course, that the NYPD “reasonably suspected” weapons in over 700,000 stop-and-frisk incidents last year.

These courts’ judge panels for the two cases were berated by Mayor Bloomberg, who vowed to appeal the decisions. On a broader scale, the De Bour laws have been criticized for being borderline inaccurate in their categorization of street encounters, the NY Law Journal finds:

Eugene O’Donnell, a former police officer and prosecutor who is a professor at John Jay College of Criminal Justice, said the four De Bour levels are “not just unworkable, they are indecipherable.”

How does a police officer “go out there and undertake a street encounter if nobody can understand what the parameters of a street encounter are?” O’Donnell asked, adding that “you could make a strong argument” that the difficulty of applying De Bour “invites perjury” by police witnesses.

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